Doctor Says HMO Fired Her for Lobbying for Better Care

Dr. Claudia Jensen weeps every time she remembers the harried 72-hour shift she worked over a holiday weekend two years ago, hustling between two hospitals and treating sick kids on the run.

As the designated on-call pediatrician for a managed health care group, Jensen fielded 158 phone calls and treated 20 children while darting between hospitals in Camarillo and Thousand Oaks.

By her standards, it was unacceptable.

She had already complained to her supervisor at Greater Valley Medical Group about the on-call practices, and she complained again.

Less than a month later, she was terminated.

Now, the 43-year-old pediatrician is suing her former employers, contending they retaliated against her for blowing the whistle on dangerous practices. Greater Valley attorneys say the decision was strictly financial and that two other doctors were laid off at the same time.

Her lawsuit, set for trial in Ventura County Superior Court on Wednesday, will test the legal waters of a relatively new statute prohibiting employers from retaliating against doctors who advocate for better patient care.

Amended as recently as last year, the 1993 statute has never been tested in the state’s higher courts.

At issue is whether Jensen was dismissed for such advocacy or laid off for financial reasons and whether Greater Valley’s standards of health care were too low or Jensen’s too high.

It is a case that delves into questions about what is expected of doctors, whether those expectations are reasonable, and whether managed care adequately addresses the needs of its patients.

And it is a case that has opened up Jensen to great personal, professional and financial risk, all of which has taken a back seat in her crusade for justice.

“I don’t care,” she said of the risks involved in taking the case to trial. “Sooner or later, someone is going to get hurt if you don’t change the system.”

Jensen was hired by the Northridge-based Greater Valley in 1994, attracted to the group’s commitment to high quality health care and the opportunity to move into management, she said.

Six months after she took the job, Greater Valley decided to expand its pediatric practice. The group oversees health care for about 20,000 residents in Ventura County and 43,000 residents in the San Fernando Valley.

In May 1995, Greater Valley purchased the assets of Children’s Medical Group of Thousand Oaks and added four pediatricians.

After the acquisition, an on-call panel comprised of six pediatricians--three from Greater Valley and three from the Thousand Oaks area--was established to handle after-hours calls, court documents show.

Jensen initially declined to join the rotating panel because she wanted to handle the calls of only her own patients. But later she relented.

In November, Greater Valley’s doctors were told that the group was in financial trouble, but Jensen said her bosses assured them that there would be no layoffs.

Meanwhile, Jensen became concerned that the on-call system was not meeting the needs of the group’s patients. On Dec. 22, she wrote a lengthy letter to her supervisor, Dr. Albert Odio, detailing the problems she saw:

Phone calls from concerned parents were not being returned quickly enough, she said. Medical histories were being glossed over, and the high volume of patients, she wrote, was preventing doctors from adequately screening for appetite, fluid intake or pain.

Then came the 1995 New Year’s weekend. Jensen was on call for 72 hours and in that time responded to 158 phone calls and treated 20 patients.

“I had so many patients coming in on Saturday that Los Robles [Regional Medical Center] opened a second wing just for my patients and gave me a nurse,” she said. “You can imagine the quality of care. I was running a fast track.”

Feeling that the emergency room patients were waiting too long, she asked the on-call secretary to contact other pediatricians to help. Some could not be reached. Others got angry, she said, telling Jensen when she returned to work that she should have been able to handle the situation.

Two weeks later, she was laid off. A letter from the group’s regional medical director, who declined comment, informed her that her services were no longer needed.

He later explained that the reason for her dismissal was “strictly financial,” she said. Jensen was stunned.

“I never in my wildest dreams expected that I was going to be laid off,” she said.

After struggling to find another job, Jensen decided to file a wrongful-termination lawsuit. She is seeking damages in lost wages at a rate of $10,000 per month, and future lost wages to exceed $240,000.

Jensen specifically alleges that under state law, Greater Valley violated the statute protecting California doctors from retaliatory terminations where the primary reason for the firing was a doctor’s advocacy against medical practices that are “reasonably likely to be detrimental to patient safety.”

Or, in the words of Jensen’s former lawyer: “It sounds to me like they are getting rid of a squeaky wheel and replacing her with a wheel that doesn’t squeak,” said Karen B. Darnall.

“It’s a squirrelly policy,” Darnall said of the relatively new law being tested in Jensen’s case. “A jury could find that what she expects is too much. I think that what she is asserting is very practical.”

But Kenneth Drake, the Sherman Oaks attorney representing Greater Valley, said Jensen’s attempt to bring her case within the reach of the 1993 statute is “like putting a round peg into a square hole.”

The law does not protect a doctor who protests any practice believed to compromise medically appropriate health care, but those who advocate reasonable practices consistent with the community’s standard of care, his legal papers say.

“We don’t think that the facts of this case come within the reach of [the statute],” Drake said in a recent interview. “This was a lawful employment separation.”

As for Jensen’s claims that it was her big mouth and not the cost of her hefty $120,000 salary that led to her dismissal, Drake said: “That is simply not the case.”

The law Jensen’s case relies on was enacted in response to growing concerns in the medical community about the potential for doctors and insurers to clash over what constitutes appropriate care.

With the dawning of managed care, some physicians worried that giant health-management organizations could terminate doctors who advocate for better--sometimes more expensive--health care.

“There has been a chilling effect on doctors,” said Oxnard attorney Mark Hiepler, who handles lawsuits dealing primarily with health care issues. “This legislation came out as a response.”

But proving retaliation by an employer is no easy task, Hiepler said.

“We’ve looked into a lot of cases,” he said. “But I am unaware of any that have gone the distance. I think the local one could really set a standard.”

Sipping iced tea at the close of a recent workday, Jensen said she realizes her case will be tough to prove in court. In the year since her dismissal, the Camarillo resident and single mother of two young girls has opened her own medical practice in downtown Ventura.

Some of her former Greater Valley patients have followed her, and she says her tiny one-woman practice is doing well.

“I don’t have a nurse,” she said. “I do all of my own shots, all of my own vitals.”

She remains upbeat, and is hopeful about the future of her practice. She shares office space with other medical professionals, and calls their exchange of ideas stimulating. But when she talks about her experience with Greater Valley, Jensen often breaks into tears.

“I am concerned about her,” said Darnall, who had to drop Jensen’s case recently because of a scheduling conflict. “It is something that could easily get appealed. She is definitely taking the tougher row to hoe.”

So why gamble her reputation and money on a risky lawsuit?

Jensen said she cannot let go of the belief that she was wronged, and that other physicians could be wronged in the future if she does not take action.

“I know I am opinionated, I know I am noisy when I see a problem,” she said. “But I am good. And I care about the patients.

“I used to be a committed managed-care enthusiast until this,” she added. “It’s a matter of luck before somebody gets hurt. You can rely on luck, which is what most managed-care programs do. But when you have one kid die, you have one kid dead. And to me, one dead kid is one too many.”

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